For the first time, a top coal industry executive faces criminal charges

The autocratic, micro-managing, bludgeoning style that won throwback Appalachian coal baron Don Blankenship the ire of environmentalists, the fear of underlings, and the title “Dark Lord of Coal Country” from Rolling Stone may finally have caught up with him.

The opening arguments began today in Blankenship’s federal criminal trial. He faces charges of conspiring to avoid safety laws and lying to regulators that could put him behind bars for up to 31 years.

Blankenship casts a long shadow over the Appalachian coal industry. Since the early 1980s, he’s fought labor unions, regulatory agencies, environmental activists, and other coal companies. Under his guidance, Massey Energy grew to become the fourth largest U.S. coal producer, and the largest in Appalachia, by the time of his retirement at the end of 2010. He became known not just for his business exploits, but for railing against “greeniacs” (his term for environmentalists) and what he called a “War on Coal,” carried out by federal government agencies such as the Environmental Protection Agency and the Mine Safety and Health Administration (MSHA).

Blankenship’s downfall was triggered by the April 5, 2010, explosion at Massey’s Upper Big Branch mine, which killed 29 men and was the worst coal disaster in 40 years. Four separate investigations found that poor safety practices in the mine allowed for the explosion, which occurred when a spark from a longwall machine, which cuts huge slices of coal, ignited a pocket of methane, creating a fireball and triggering a bigger explosion when it hit piles of coal dust.

Blankenship retired from Massey at the end of 2010, forced out prior to its acquisition by Alpha Natural Resources. Now, five years later, he faces criminal charges — not for the explosion or the deaths of 29 miners — but for conspiring to skirt mining safety regulators at the Upper Big Branch mine, impeding MSHA inspectors, and lying to the U.S. Securities and Exchange Commission in the days following the explosion by claiming in interviews and filings that Massey strove to adhere to all safety regulations.

The Blankenship trial represents a monumental moment in the history of the coal industry and Appalachia. It is the first time a top executive in the coal industry has been criminally charged with violating safety regulations.

When disasters occurred in the past, regulators fined companies and occasionally prosecuted low-level employees and managers, if anyone. That’s led to an environment, documented by a 2014 NPR investigation, in which it appears that companies considered regulatory fines as another cost of doing business, and thousands of operators never bothered to pay them at all.

Patrick McGinley, a law professor at West Virginia University who contributed to an independent investigation after the 2010 explosion, said a few factors converged in this case: Firstly, Blankenship’s hands-on approach to managing Massey, making “decisions about very minor issues in particular mines, not only Upper Big Branch, that 99 percent of CEOs of billion-dollar corporations would never be involved in”; secondly, four separate post-explosion investigations that blamed the disaster in part on a culture of intimidation and deliberate violations of safety regulations; and finally, evidence that points to Blankenship’s knowledge of violations and his role in propagating them, which stand in retrospect as a glaring red flag.

“When you bring all of those things together, that accounts for the U.S. attorney going forward with the prosecution, which really is unprecedented,” McGinley said. “When there were really terrible mine disasters in the 20th century, top executives and managers at coal mines weren’t criminally prosecuted. It might have occurred at a low level, shift foreman and so forth. While there were criminal laws on the books that might have been utilized to bring corporate coal-mine managers to justice, they simply weren’t used. Criminal law was no deterrent to corporate officials who made decisions that resulted in injury or loss of life of coal miners.”

Blankenship’s trial carries symbolic overtones, too. His rise up the Massey ladder from the time he first joined a company subsidiary in 1982 was marked by constant cost cutting to maximize profit and his outspoken embrace of dog-eat-dog capitalism.

“Running coal”

A very different Blankenship appears in the numerous court cases he’s been involved with over the years. In pursuit of an unemployment claim against the company that hired her as Blankenship’s maid, Deborah May described him throwing temper tantrums over minor mistakes — like the time when, finding bacon in his McDonald’s egg-and-cheese biscuit, Blankenship threw it, grabbed her wrist, and told her, “Any time I want you to do exactly what I tell you to do and nothing more and nothing less.”

In another instance, Blankenship told an ABC camera operator, “If you start taking pictures of me, you’re liable to get shot,” before shoving the camera.

That behavior is small potatoes when compared to Blankenship’s pursuit of producing and selling coal at the biggest possible profit. His philosophy permeates the memos, phone calls, and conversations gathered as evidence in the case: Don’t waste your time on anything other than “running” coal.

In an October 2005 memo to Massey’s deep-mine supervisors, Blankenship wrote: “If any of you have been asked by your group presidents, your supervisors, engineers, or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.”

The memo came out as part of a case by two widows whose husbands died in a fire in the Massey-owned Aracoma Alma No. 1 Mine in Logan County, W.Va. (It was later settled with a $1.7 million civil fine and $2.5 million in criminal fines.)

Other lawsuits claimed Massey had injected heavy metal-laden coal slurry into abandoned mines, poisoning nearby rivers and groundwater used by local residents. Blankenship lived in the neighborhood, but he wasn’t affected because Massey had paid for a private water line to his house from the nearby town of Matewan.

The case that most firmly established Blankenship’s reputation as a modern-day coal baron involved a smaller operator who claimed that Massey had bullied him into bankruptcy in 1998. Four years later, a jury awarded the operator $50 million, but it was overturned by the West Virginia Supreme Court, which included one justice who’d benefited from $3 million worth of Blankenship-paid ads in his election, and another justice later seen in photographs wining and dining with Blankenship on the French Riviera. Despite a U.S. Supreme Court decision overturning the state supreme court, the case continued to kick around until last spring, when a Virginia jury awarded $5 million to the operator — only a 10th of what had initially been awarded.

Massey continued to run coal and make ever-growing profits despite the court awards and MSHA fines. Blankenship grew more emboldened and more political. He continued to spend money on politics, mostly to help defeat Democrats. He also went on the offensive against environmentalists who increasingly protested the coal industry for its devastating impact on the central Appalachian mountains of West Virginia, Kentucky, and Virginia — among the world’s most biologically diverse mountain ranges, at least prior to exploitation. Blankenship draped his website and his body in the American flag, enlisting Hank Williams Jr., Ted Nugent, and Sean Hannity for a 2009 anti-government Labor Day rally that included “War on Coal” talking points that have all but driven Democrats out of Appalachia’s congressional delegation in the three elections since then.

What to watch for in the trial

When jury selection began on Oct. 1, the prosecution and defense had already been dueling for nearly a year. In about 400 case filings so far, they’ve traded blows and helped to shape the legal battlefield on which Blankenship’s fate will be decided.

To win conviction, U.S. Attorney Booth Goodwin and the prosecution must tie Blankenship directly to decisions made within Massey’s mines. They must show that not only did mine officials defy safety regulations — Upper Big Branch racked up 835 violations during the indictment period between Jan. 1, 2008, and April 9, 2010 — but also that Blankenship encouraged and enforced this pattern of behavior.

The indictment cites memos from Blankenship in which he criticized a mine executive for “letting MSHA run his mines” and later called that executive’s use of employees to focus on safety and cleanup as “ridiculous” and “crazy.” At one point, he threatened to fire the executive for not cutting costs enough: “You have a kid to feed. Do your job.”

Prosecutors likely will introduce more documents that indicate Blankenship micro-managed Upper Big Branch. They’ve also got access to hundreds of hours of Nixon-esque office recordings that Blankenship made himself. The content of those recordings has become a central focus of speculation in the trial. Additionally, prosecutors will rely on testimony of former Massey employees who worked in Upper Big Branch, presumably including former Performance Coal President Chris Blanchard, who headed the Massey subsidiary that ran Upper Big Branch and who testified before the grand jury that handed down the indictment.

Although the criminal charges don’t actually hold Blankenship responsible for the explosion, they very much sit as the elephant in the room. It’s a necessary hinge point to tack on the charges about lying to the SEC, which carry the biggest part of his potential sentence.

Blankenship had spent $5.8 million on his defense as of April, according to court records. The final figure could easily swell to more than twice that. The defense succeeded in delaying the trial by 10 months and moving it from Beckley, W.Va., to Charleston, a bit farther away from the Upper Big Branch mine. As late as September, the defense was still filing motions to further delay the trial and to move it completely out of the coal fields.

It may seem counterintuitive, given that it filed a motion to exclude any evidence involving Upper Big Branch, but McGinley said he expects the defense may actually try to give the explosion a more central role, both to detract from the actual charges and to create a possible appeal by claiming the jury was prejudiced by testimony about the miner deaths. The defense may also seek to espouse an alternate theory about the explosion’s cause — propagated by a Massey film — blaming an unforeseen pocket of natural gas and a bad ventilation scheme forced by MSHA regulators.

In its filings, the defense also alleged that Blankenship’s prosecution was politically motivated because of his outspokenness and willingness to criticize MSHA, the EPA, and the federal government. That argument likely will reappear in court, along with criticism of specific MSHA inspectors.

Certainly, many of Appalachia’s most accessible seams have been mined, but coal remains a major component for power generation, even as companies like American Electric Power retire coal-fired plants and plan to shift the burden to natural gas and renewables. Metallurgical coal, which is used in construction and is the type of coal mined at Upper Big Branch, has shown to be a product that goes in cycles. Blankenship rose in the industry by purchasing a slew of met coal mines during a previous downturn in the 1980s, and the next Blankenship may already be making similar investments.

Yet the high-profile trial may generate progress, too. McGinley said that if the prosecution can put Blankenship behind bars for what happened on his watch, it may create a deterrent that will make mining executives actually try to improve safety conditions for employees, rather than treating fines for violations as a mere cost of doing business. Then again, it could just lead them to better cover their tracks.

The Blankenship trial may further incremental change by shining a harsh spotlight on the actions of King Coal, which run counter to its rhetoric. “These large companies like to portray themselves as looking out for the best interest of the community, despite the fact that the region has suffered under the dominance of a single industry,” Savage said. “This [trial] may be able to change the dialogue about whether the industry can be taken at face value or is doing what’s in the best interest of communities.”

Bill Price, the Charleston-based senior organizing representative for the Sierra Club’s Beyond Coal campaign, said that the trial has started a conversation “about accountability, not just for Don Blankenship but for all coal executives.”

“It’s high time we hold the coal industry and its executives responsible for not following health standards and environmental standards,” Price said. “Whether or not the trial will lead to that depends on the verdict. At least the conversation is happening now.”